John Alcantara v. Leland McEwen

MEMORANDUM

The Court held in Lovasco that the Sixth Amendment is irrelevant for pre-indictment delay analysis. Id. at 788, 97 S.Ct. 2044 . The statute of limitations is the primary protection against stale charges, Id. at 789, 97 S.Ct. 2044 , and, of course, it did not ban this murder indictment. The Due Process Clause nevertheless “has a limited role to play.” Id. Even actual prejudice does not necessarily establish a due process violation. Id. at 789-90, 97 S.Ct. 2044 . Deferring indictment until the prosecutor has probable cause and until the prosecutor is satisfied that he can prove guilt beyond a reasonable doubt justifies delay. Id. at 791-92, 97 S.Ct. 2044 . That justifies the delay here. And under Lovasco, the prosecutor may delay further for various necessary, subjective reasons so long as the delay is not “solely to gain tactical advantage over the accused.” Id. at 795, 97 S.Ct. 2044 (internal quotation marks and citation omitted). The record here supports no such inference.

Alcantara first argues in this § 2254 ha-beas appeal that his due process rights were violated because of a twenty-two year delay between the murder and his arrest. The pertinent Supreme Court…